Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 15 October, 2019
st
Decided on: 31 October, 2019
FAO (OS) 64/2019 and CM Appl. No. 15551/2019 (stay)
PURO WELLNESS PVT LTD ..... Appellant
Through: Mr. Sudhir Chandra, Senior Advocate
and Mr. C.M. Lall, Senior Advocates
with Mr. Rajat Manchanda, Advocate.
versus
TATA CHEMICALS LTD ..... Respondent
Through: Ms. Bani Dakhsit and Ms. Ashima
Ghosh, Advocates.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
J U D G M E N T
Dr. S. Muralidhar, J. :
th
1. This appeal is directed against an order dated 15 March, 2019 passed by
the learned Single Judge in IA No.10934/2018 in CS(OS) No. 403/2018
restraining the Appellant/Defendant from “televising or publishing any
commercials or any other advertising or promotional material in the print or
electronic form which would result in disparagement or denigration of the
Plaintiff's product/brand TATA salt including the impugned three television
commercials or any modified forms thereof, the viral video, the pamphlet
and the flyer as also the marketing booklet or any modified forms thereof.”
2. The learned Single Judge however clarified that the Appellant “is entitled
FAO (OS) No.64/2019 Page 1 of 26
to promote its own product- Puro Healthy Salt as a salt which is natural and
healthy.”
TCL's case
3. The aforementioned suit was filed by the Respondent/Plaintiff Tata
Chemicals Limited (TCL) against the present Appellant alleging that the
Appellant had in the impugned „advertising material‟ made „false, baseless
and reckless statements‟ against the Respondent/Plaintiff‟s product: „TATA
Salt‟. The „impugned material‟ referred to in the plaint comprises:
(a) Three television commercials (TVCs) featuring the well-known actor
Mr. Anil Kapoor
(b) Modified TVCs which allegedly continued the false propaganda
(c) Interview of the promoter of the Appellant Mr. Ruchir Modi published in
th
the Economic Times (ET) dated 14 March, 2018
(d) A flyer/pamphlet containing allegedly objectionable content
(e) A video alleged to have been published and circulated by the Appellant
on WhatsApp.
4. TCL averred in the plaint that since 1983 it has been manufacturing
TATA salt and enjoys a 24% to 25% market share in edible iodised salt. It
further claimed that it was one of the two Indian companies to manufacture
iodised white salt through vacuum evaporation and that it was safe for
human consumption. It claimed that TATA Salt was fully compliant with
the norms under the Food Safety and Standards Act, 2006 (FSS Act) and the
regulations thereunder. It admitted to using an anti-caking agent being E-536
permissible under the FSS Act as well as one iodised agent i.e. Potassium
FAO (OS) No.64/2019 Page 2 of 26
iodate.
5. The Appellant manufactures „Puro Healthy Salt‟. TCL alleged that the
above aforementioned 'impugned material' of the Appellant constituted its
'campaign' that was intended to send a message that TATA Salt was harmful
to health and not fit for human consumption. TCL characterised the said
impugned material as „disparaging, malicious and false‟. Referring to the
gesture of the wave of hand by Mr. Anil Kapoor in the three TVCs, TCL
alleged that this were „meant to cast aspersions on the Plaintiff‟s brand-
TATA.‟ It was alleged that the advertisement was not merely puffery but
was „false and slanderous.‟
6. TCL averred in the plaint that it addressed a complaint to the Advertising
Standards Council of India („ASCI‟) in relation to the first of the three TVCs
th
released. ASCI assured TCL by an e-mail dated 13 December, 2017 that it
was looking into the matter. During the pendency of that complaint the
second and third TVC and the modified TVCs came to be telecast. By two
th
separate e-mails dated 9 January, 2018 TCL made further complaints to
ASCI against the Appellant.
th th
7. TCL claimed that by e-mails dated 15 February, 2018 and 11 March,
2018 ASCI held in favour of TCL, substantially upholding its contentions.
After the first e-mail an undertaking of the Appellant was recorded by the
ASCI that it would modify its advertisements. It is further claimed that the
Foods Safety Standards Authority of India („FSSAI‟) had also complained
against the impugned material to ASCI.
FAO (OS) No.64/2019 Page 3 of 26
8. The Appellant did not comply with the recommendations of ASCI but
challenged it by filing Suit No.1167/2018 in the Bombay High Court
primarily on the ground that it was not a member of the ASCI and therefore
not bound by its recommendations.
9. The plaint also adverted to the fact that the Indian Salt Manufacturers
Association („ISMA‟) filed Civil Suit No. 432/2018 in the City Civil Court,
Ahmedabad against the 'impugned material' being released. An ex-parte ad-
interim injunction granted initially in the said suit was subsequently vacated
by the Gujarat High Court for failure to record reasons. The said suit is
stated to be pending. Apparently, another Civil Suit was filed before the
Principal Senior Civil Judge, Gandhidham, which too was stated to be
pending.
Case of the Appellant
10. In its written statement the Appellant contended that TCL was indulging
in „forum shopping‟. It pointed out that in respect of the same subject matter,
the following proceedings were pending:
(i) Suit before the Bombay High Court arising out of the ASCI complaint;
(ii) ISMA's Suit before the City Civil Court, Ahmedabad;
(iii) Suit in the Court of the Principal Senior Civil Judge, Gandhidham by an
individual.
11. The Appellant further averred that the „Puro Healthy Salt‟ manufactured
by it was „unrefined Himalayan pink rock salt‟. It came to be manufactured
from 2017 onwards as a natural healthier alternative to regular refined white
FAO (OS) No.64/2019 Page 4 of 26
salt.
12. The Appellant questioned the maintainability of the suit before the
learned Single Judge on the ground of territorial jurisdiction. It was
specifically averred that the 'video' referred to by TCL had already been
disowned by the Appellant. A complaint regarding the video was filed with
the ASCI and the Appellant had denied that it was circulated at its behest.
The Appellant contended that it was „not created by the Defendant nor
circulated by the Defendant‟ and that it had categorically informed ASCI
about this. It is pointed out that although the Appellant was not a member of
the ASCI and was not governed by the decisions of the ASCI, TCL being a
member of ASCI was bound by its decision. The ASCI had in fact held that
the impugned viral video could not be attributed to the Appellant.
13. As regards the 'flyer', it was contended by the Appellant that TCL had
projected just one page of a brochure the images on which were "blurred
images of products which were created by the creative agency" and cannot
be identified. It was further pointed out that the Appellant had “already
stopped using the brochure since March, 2018 in view of the barrage of the
frivolous ASCI complaints initiated by or at the behest of TCL”. In other
words, it was pointed out that there was no such “alleged impugned flyer” as
sought to be suggested by TCL.
14. It is further pointed out that the Consumer Complaints Council of the
ASCI had, while deciding the complaints filed by the Plaintiff TCL, held
that it did not think that the statement made by the protagonist regarding
FAO (OS) No.64/2019 Page 5 of 26
„white refined salt‟ not being kudrati ('natural') was objectionable. The
Defendant maintained that nowhere in the TVCs or the modified TVCs was
there any reference made to the Plaintiff‟s product and that there was no
disparaging content therein.
15. The Appellant further contended that the fact remained that refined salt
was produced by TCL using a chemical process and that no statement had
been made by the Appellant in the TVCs that TCL's product was hazardous
or contaminated or unfit for human consumption. The stand of the Appellant
was that merely because the standards prescribed by the FSSAI were met
with by the Plaintiff‟s product, it did not mean that such product was
healthy. The statement that white refined salt contains chemicals was
truthful since the chemical name of E-536 was Potassium Ferrocyanide
which was a chemical banned from being added in food products in many
countries such as the USA. It is pointed out that the Appellant had not
claimed that E-536 was banned in India and the fact that the FSSAI had
approved some quantities of E-536 to be used in white refined salt did not
make it healthy.
16. The Appellant averred that the Plaintiff was manufacturing white refined
salt at its integrated inorganic chemicals complex at Mithapur, Gujarat
where it had set up a chemical factory for the production of soda-ash. The
white refined salt was a by-product of using steam to make soda-ash. The
Appellant pointed out that the Plaintiff also manufactured cement, caustic
soda, liquid chlorine, sulphuric acid and soda-ash in the same factory and
that, therefore its statement that the Plaintiff‟s product was manufactured in
FAO (OS) No.64/2019 Page 6 of 26
a chemical factory was correct.
17. The specific contention of the Appellant in relation to the TVCs was that
„manner, intent, story line and message conveyed by the impugned TVC is
nothing but the truth‟. As regards the interview stated to have been given to
th
ET on 14 March, 2018 by the promoter of the Appellant, it was pointed out
that in the said interview no reference was made to TCL or its product. As
regards the waving action it is averred in para 2.12 of the Memorandum of
Appeal as under:
2.12 That with a view to peacefully carry on its business and to
avoid any complications and unnecessary harassment or legal
proceedings, the Appellant informed the ASCI representatives
that without prejudice to its objection as to the jurisdiction of
ASCI vis-a-vis the Appellant, it had discontinued airing all three
of the Appellant's TVCs in their original form and has started
airing slightly modified versions of the Appellant's TVCs after
removing the waving action which according to ASCI was the
objectionable element and the same was communicated to the
Appellant during a meeting with ASCI after the passing of the
decision. It is pertinent to mention that the waving action was
not a reference to the Respondent as sought to be falsely
suggested in the Plaint but is an action which is used in
advertisements across industries and only means good-bye.”
18. It is further stated by the Appellant in para 2.14 of the memorandum of
appeal that in Suit No. 656/2018 before the Bombay High Court against the
th
order of the ASCI, the High Court on 4 May, 2018 granted an injunction
restraining ASCI from implementing any of the decisions given in respect of
the three TVCs. In the appeal filed by the ASCI against the said order being
Appeal No. 235/2018, the Division Bench declined to interfere by its order
FAO (OS) No.64/2019 Page 7 of 26
th
dated 4 July, 2018.
19. The Appellant pointed out that TCL is one of the principal members of
the ISMA and instrumental in its formation. ISMA filed Civil Suit
No.432/2018 in which an ex-parte injunction order was passed by the City
Civil Court. However, in the appeal from order No.70/2018 filed by the
Appellant in the High Court of Gujarat, the injunction order was vacated.
After the Appellant filed a reply to the injunction application in the suit in
this Court, ISMA sought to withdraw its suit before the Ahmedabad, City
Civil Court reserving its right to take „appropriate steps‟/pursue „appropriate
remedies‟ but on an objection taken by the Appellant to such conditional
withdrawal, the City Civil Court, Ahmedabad dismissed the said application
filed by ISMA.
20. The Appellant pointed out that the third proceeding was another Civil
Suit No. 104/2018 filed by one Mr. N.I. Thakkar in a representative capacity
against the Appellant before the Court of Principal Senior Civil Judge,
th
Gandhidham on 30 July, 2018 based on the same cause of action as the
ISMA suit. According to the Appellant, this was only done to harass the
th
Appellant. In the said suit on 17 August, 2018 an injunction was issued
restraining the Appellant from circulating the flyer. The Appellant filed a
reply in the injunction application. Thereafter the said Court at Gandhidham
nd
by the order dated 2 November, 2018 recorded that the video was neither
created nor circulated by the Appellant in addition to the fact that the
Appellant had stated so in its reply.
FAO (OS) No.64/2019 Page 8 of 26
Impugned order of the Single Judge
21. It is seen that the arguments in the interim injunction application before
th
the learned Single Judge concluded on 16 January, 2019. The impugned
th
order was passed on 15 March, 2019 in which the learned Single Judge
came to the following conclusions:
(i) The purpose of the impugned material was to „clearly convince customers
that white salt is dangerous for health‟ and that the said message was being
conveyed „by making references and allusions to TATA Salt‟.
(ii) In the video, „TATA Salt packaging is clearly visible‟.
(iii) In the pamphlets and booklet, TATA Salt packaging is blurred, but there
is no doubt that packaging is clearly discernible‟.
(iv) “A comparison of white salt with poison is clearly meant to create panic
amongst the consuming public and if allowed to be carried on unhindered, it
can have a deleterious impact not just on the Plaintiff and its product, but
also on customers, who could be forced to give up on the use of white salt,
which is a basic ingredient in food cooked in almost every household in the
country.”
(v) “The portrayal that white salt is bleached, manufactured in a chemical
factory and comparable with paint or bleached clothes is not merely puffing
but an exaggerated message which could lead to shaking up of customers‟
confidence.”
22. The learned Single Judge also observed that TCL's product had been
„sold for several decades and this is a fact of which judicial notice can be
taken‟. It was observed that „showing the Plaintiff‟s plant, calling it a
chemical factory and making wide ranging allegations that hyper tension is
FAO (OS) No.64/2019 Page 9 of 26
caused due to consumption of white salt were ''statements made without
foundational facts” and that it was not permissible for any company to
indulge in advertising for its product which would lead to panic amongst
consumers."
23. The learned Single then dealt with the price difference between the two
products and observed that it was 'extremely stark'. It was noted that 1 kg of
TATA Salt costs Rs.20 whereas the Appellant's product was sold at Rs.99
per kg. The learned Single Judge concluded that TCL's product was
„consumed by the masses‟ and that the Appellant's product „is not a
substitute or replacement for the same due to pricing itself.‟ Further it was
observed that both were not comparable products: "one is iodised salt which
is sold as per FSSAI Regulations. The other is rock salt." According to the
learned Single Judge, "the intent of all these commercials and
advertisements is to shock the consumers."
24. As regards the submission of the Appellant that the three TVCs were
also the subject matter of the ISMA suit, the learned Single Judge observed
that this was correct: “However, when the TVCs are seen along with the
additional material from the point of view of specifically the Plaintiffs
product -TATA salt, the legal and statutory rights that are affected as also
the reliefs that can be claimed by the Plaintiff are those that cannot be
granted in the ISMA suit.”
25. According to learned Single Judge
“The right of the Plaintiff to protect the good standing of TATA
FAO (OS) No.64/2019 Page 10 of 26
salt as a product and TATA as a brand is a right which cannot be
replaced or exercised by ISMA which can only take general
action to protect its members including the Plaintiff. The ISMA
suit does not usurp the Plaintiffs rights to sue and neither can the
said right be replaced by ISMA.”
26. On the view of the learned Single Judge, when the advertisement
campaign was viewed as a whole and the submission of the Plaintiff that the
hand waving gesture of „bye-bye‟ was an allusion to TATA was „rather
amusing‟ “at the same time it cannot be said that the same is wholly
innocent.” The learned Single Judge then referred to the decisions of this
Court in Colgate Palmolive Company v. Hindustan Unilever Limited 206
(2014) DLT 329 and Dabur India Limited v. M/s Colortek Meghalaya Pvt.
Ltd. ILR (2010) 4 DLT 489 and the decision of the Bombay High Court
th
dated 16 June, 2017 in notice of motion (L.No.690/2017) in Suit (L) No.
204/2017 ( Hindustan Unilever Limited v. Gujarat Co-operative Milk
Marketing Federation Limited ) and concluded that the impugned material
showed that the intention of the Appellant was not merely to promote its
product as a better product „but to call white salt in general, and specifically
TATA salt, dangerous as it is made in a chemical factory and is bleached.‟
27. As regards the Appellant disowning the video the learned Single Judge
observed as under:
“The clever manner in which the Defendant has completely
disowned the viral video, which is completely beneficial only
to its own business, clearly shows that the Defendant does not
wish to own up to its own acts. A perusal of the video shows
several commonalities between the admitted material and the
disputed video. The theme in all the impugned material is the
same. It is very telling that the markings which appear in the
FAO (OS) No.64/2019 Page 11 of 26
book titled 'Salt of the Earth' as shown in the video in fact
appear in the extract of the book filed by the Defendant. In the
booklet which the Defendant admits to have circulated, the
packaging of the Plaintiff is shown in a blurred form. The
conduct of the Defendant has been far from bonafide. This
Court holds that on the basis of the material available on
record, prima facie the video has been circulated either by the
Defendant or at its behest.”
28. It was further held as under:
“Permitting the Defendant to continue, the telecast/publication
of the impugned material would lead to allowing tarnishing
and denigration of a product such as TATA salt which is a
household name in India. The truthfulness or otherwise of the
Defendant's allegations would have to be gone into during trial.
But even if it is presumed that the product is made at the
Mithapur plant, where one of the by-products of the
manufacture of salt from the sea is soda ash, the depiction of
the same in the manner in which it is done by the Defendant is
wholly unacceptable.”
29. According to the learned Single Judge:
“The TATA brand has earned an iconic status. TATA Salt was
introduced by the Plaintiff and was recognised by the
Government as one of the products meant to eliminate iodine
deficiency. It was promoted as ''Desh ka Namak Tata Namak”
and has a large customer base. The swathe of population which
has consumed and continues to consume a product such as
TATA salt cannot be led to believe that they were consuming
poison or a dangerous ingredient, without there being
irrebuttable proof for the same. Upholding the Defendant's
right to make such statements would mean that the regulatory
authorities have turned a blind eye to poison being sold, which
is also clearly unacceptable. The truth, if any, of the
Defendant's statements has to be established in trial. Until then,
the Defendant cannot be permitted to make such denigratory
and disparaging remarks.”
FAO (OS) No.64/2019 Page 12 of 26
30. This Court has heard the submissions of Mr. Sudhir Chandra, learned
Senior Counsel for the Appellant and Ms. Bani Dikshit, counsel for the
Respondent TCL.
Scope of the present appeal
31. At the outset it requires to be clarified that of the „impugned material‟
considered by the learned Single Judge, one has been expressly disowned by
the Appellant viz., the video circulated on Whatsapp. This was noted even
by the learned Single Judge. However, for some reason, and to this Court it
appears to be a conclusion not based on evidence, the learned Single Judge
concluded that the video was circulated at the behest of the Appellant.
Indeed, there was no material at the stage at which the impugned order was
passed to come to such a conclusion. Even ASCI held that the video could
not be attributed to the Appellant. In any event, Mr. Chandra clearly stated
that the Appellant is not aggrieved by the video being injuncted from being
circulated and is concerned only with it being wrongly attributed to the
Appellant.
32. As regards the alleged flyer, the Court has been shown the brochure
circulated by the Appellant. On page 10 in the left-hand top corner of the
said brochure, there are blurred images of some salt packets which,
according to the Respondent/Plaintiff, were blurred images of the TATA salt
packets. Mr. Chandra on instructions has stated that they are willing to
remove the said blurred image at page 10. The said undertaking is taken on
record. In the considered view of the Court, once the blurred image is
removed from page 10 of the Appellant's promotional brochure, any
FAO (OS) No.64/2019 Page 13 of 26
grievance of TCL that the said brochure specifically targets its product
should stand allayed.
th
33. The third element of the 'impugned material' is the ET article dated 14
March, 2018 carrying an interview with the promoter of the Appellant. The
said article has been written by Mr. Rajiv Singh who is not stated to be
connected with the Appellant. A perusal of the printed interview does not
reveal any words spoken by the Appellant's promoter which disparages
TCL's product. This is of course on a prima-facie reading of the said article.
The comments outside of the quotes attributed to the Appellant's promoter
are to be attributed to the author of the piece and not the Appellant.
Consequently, injuncting the said article, which already stands published,
and is not shown to have been repeated, is pointless.
34. While the learned Single Judge has proceeded on the basis that the
impugned material should be considered as constituting a „campaign‟ and it
should therefore be considered as a whole, it was necessary for the Single
Judge to have considered the merits of each of the distinct elements
constituting the 'impugned material'. Further in the impugned judgment, one
type of material is conflated with the other. For instance, there is extensive
reference in the impugned judgment at various places to the video and its
contents despite it being disowned by the Appellant.
35. The focus of the present judgment would, therefore, be the three TVCs
and understandably most of the arguments of the parties focussed on them.
FAO (OS) No.64/2019 Page 14 of 26
Legal position
36. Before proceeding to discuss the three TVCs, a brief recapitulation of
the legal position would be necessary. In Reckitt & Colman of India
Ltd. v. M.P. Ramchandran, 1999 (19) PTC 741 the following propositions
relating to comparative advertising were laid down by the Calcutta High
Court:
(a) A tradesman is entitled to declare his goods to be best in the world,
even though the declaration is untrue.
(b) He can also say that his goods are better than his competitors', even
though such statement is untrue.
(c) For the purpose of saying that his goods are the best in the world or
his goods are better than his competitors' he can even compare the
advantages of his goods over the goods of others.
(d) He however, cannot, while saying that his goods are better than his
competitors', say that his competitors' goods are bad. If he says so, he
really slanders the goods of his competitors. In other words, he
defames his competitors and their goods, which is not permissible.
(e) If there is no defamation to the goods or to the manufacturer of such
goods no action lies, but if there is such defamation an action lies and
if an action lies for recovery of damages for defamation, then the
Court is also competent to grant an order of injunction restraining
repetition of such defamation.
37. The settled legal position is that the manufacturer of the product
allegedly disparaged ought not to be hyper-sensitive in such matters. In
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. 2003 (27) PTC 305 (Del) (DB) ,
a Division Bench of this Court explained the factors that had to be
considered while viewing commercials that compared the advertiser's
product with that of the rival. These were (i) Intent of the commercial, (ii)
FAO (OS) No.64/2019 Page 15 of 26
Manner of the commercial, and (iii) Story line of the commercial and the
message sought to be conveyed.
38. This was further developed in Dabur India Ltd. v. Colortek Meghalaya
Pvt. Ltd. ( supra ) where on an analysis of the decisions of the Supreme
Court, the following guiding principles were culled out:
(i) An advertisement is commercial speech and is protected by Article
19(1)(a) of the Constitution.
(ii) An advertisement must not be false, misleading, unfair or deceptive.
(iii) Of course, there would be some grey areas but these need not
necessarily be taken as serious representations of fact but only as
glorifying one's product.
39. The Court however added: "if an advertisement extends beyond the grey
areas and becomes a false, misleading, unfair or deceptive advertisement, it
would certainly not have the benefit of any protection.”
40. Discussing the factors delineated in Pepsi Co. Inc. v. Hindustan Coca
Cola Ltd. ( supra ) the Court in Dabur India Ltd. v. Colortek Meghalaya Pvt.
Ltd. ILR ( supra ) held:
"While we generally agree with these factors, we would like
to amplify or restate them in the following terms:
(1) The intent of the advertisement - this can be understood
from its story line and the message sought to be conveyed.
(2) The overall effect of the advertisement - does it promote
the advertiser's product or does it disparage or denigrate a
rival product?
FAO (OS) No.64/2019 Page 16 of 26
In this context it must be kept in mind that while promoting
its product, the advertiser may, while comparing it with a
rival or a competing product, make an unfavourable
comparison but that might not necessarily affect the story
line and message of the advertised product or have that as its
overall effect.
(3) The manner of advertising - is the comparison by and
large truthful or does it falsely denigrate or disparage a rival
product? While truthful disparagement is permissible,
untruthful disparagement is not permissible."
41. In Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. ILR ( supra ), the
Court emphasised that:
" an advertiser must be given enough room to play around in
(the grey areas) in the advertisement brought out by it. A
plaintiff (such as the Appellant before us) ought not to be
hyper-sensitive as brought out in Dabur India. This is
because market forces, the economic climate, the nature and
quality of a product would ultimately be the deciding factors
for a consumer to make a choice. It is possible that
aggressive or catchy advertising may cause a partial or
temporary damage to the plaintiff, but ultimately the
consumer would be the final adjudicator to decide what is
best for him or her. "
42. There too the Plaintiff claimed a larger market share and that, therefore
" the obvious target of the commercial is the product of the Appellant. "
Rejecting the argument, the Court observed:
" In our opinion, this argument cannot be accepted. The sub-text
of this argument is an intention to create a monopoly in the
market or to entrench a monopoly that the Appellant claims it
already has. If this argument were to be accepted, then no other
FAO (OS) No.64/2019 Page 17 of 26
mosquito repellant cream manufacturer would be able to
advertise its product, because in doing so, it would necessarily
mean that the Appellant's product is being targeted. All that we
are required to ascertain is whether the commercial denigrates
the Appellant's product or not. There is nothing in the
commercial to suggest a negative content or that there is a
disparagement of the Appellant's product. The commercial
merely gives the virtues of the product of the Respondents,
namely, that it has certain ingredients which perhaps no other
mosquito repellant cream has, such as tulsi, lavender and milk
protein. While comparing its product with any other product,
any advertiser would naturally highlight its positive points but
this cannot be negatively construed to mean that there is a
disparagement of a rival product. That being so, whether the
Appellant's product is targeted or not becomes irrelevant. "
43. The consumer too must be credited with some discretion as to
choice of products when the relevant information concerning them is
placed in the public domain. In De Beers Abrasive v. International
General Electric Co. 1975 (2) All ER 599 , the Court explained that
the test to be applied was " whether a reasonable man would take the
claim being made as a serious claim.” It went to elaborate as under:
"44. There appears to be an overwhelming consensus of
judicial opinion that to determine whether a statement
disparages or defames the viewpoint to be considered is that
of the general public (the refinements of whether such “right
thinking” or “reasonable” persons belong to a “respectable”
section of the public, apart). Thus, whenever an argument
that a sectarian approach (i.e. applying the standpoint of
members of a section of the public) is to be adopted, Courts
have tended to reject it time and again.
In Tolly v. Fry , 1931 AC 333, the House of Lords had to
decide if the depiction of the plaintiff, an amateur golfer -
without his consent - in an advertisement defamed or caused
FAO (OS) No.64/2019 Page 18 of 26
injury to his amateur status (which was during the times
regarded as valuable for a golfer). The advertisement
contained a limerick and also the plaintiff's picture. It was
argued unsuccessfully by the plaintiff that the governing test
was whether the knowing public (i.e. those aware about the
nature of the game, and the valuable status of an amateur, at
that time) would regard the depiction and the statement as
defamatory. The House of Lords, which had to decide
whether the judgment which left the matter to the judge,
instead of the jury, was a correct one, held that the guiding
principle was one of perception of the general public and not
the golf knowing citizens. This was emphasized in the
judgment:
“The question here does not depend upon a state
of facts known only to some special class of the
community, but to the inference which would be
drawn by the ordinary man or woman from the
facts of the publication.”
Similarly, in Gillick v. Brook Advisory Centres [2001]
EWCA Civ 1263 , the following approach was adopted:
“the court should give the article the natural and
ordinary meaning which it would have conveyed
to the ordinary reasonable reader reading the
article once. Hypothetical reasonable readers
should not be treated as either naive or unduly
suspicious. They should be treated as being
capable of reading between the lines and
engaging in some loose thinking, but not as
being avid for scandal. The court should avoid
an over-elaborate analysis of the article, because
an ordinary reader would not analyse the article
as a lawyer or accountant would analyse
documents or accounts. Judges should have
regard to the impression the article has made
upon them themselves in considering what
impact it would have made on the hypothetical
FAO (OS) No.64/2019 Page 19 of 26
reasonable reader. The court should certainly not
take a too literal approach to its task.”
44. In Dabur India Ltd. v. Wipro Ltd. Bangalore 2006 (32) PTC 677 it was
explained that:
"In comparative advertising, a consumer may look at a
commercial from a particular point of view and come to a
conclusion that one product is superior to the other, while
another consumer may look at the same commercial from
another point of view and come to a conclusion that one product
is inferior to the other. Disparagement of a product should be
defamatory or should border on defamation, a view that has
consistently been endorsed by this Court. In other words, the
degree of disparagement must be such that it would tantamount
to, or almost tantamount to defamation."
45. In the same case the Court went on to say:
"A manufacturer of a product ought not to be hyper-sensitive in
such matters. It is necessary to remember that market forces are
far stronger than the best advertisements. If a product is good
and can stand up to be counted, adverse advertising may
temporarily damage its market acceptability, but certainly not in
the long run."
46. Turning to the decision in Hindustan Unilever Limited v. Gujarat Co-
operative Milk Marketing Federation Limited ( supra ), one significant
aspect of the case was the finding of the Court that the product found to be
denigrated did not contain any vanaspathi (or artificial ghee) whereas the
impugned TVC suggested that it did. In the present case, as will be seen
hereafter, there is no direct reference in any of the three TVCs to TATA Salt
as such.
FAO (OS) No.64/2019 Page 20 of 26
47. In the background of the above legal position, the Court proceeds to
discuss the three TVCs.
The three TVCs
48. The Court has viewed the three TVCs carefully. The story board of each
of the three TVCs has some common elements and distinct elements. The
first TVC is the „paint film; the second is „clothes film‟; and the third is
„haldi film‟. The initial few frames/visuals in each of the films contain
distinct elements. The remaining frames are identical in the three TVCs.
49. The first frame in the paint film shows Mr. Anil Kapoor holding up a
white can with the words „Paint‟ written on it. In the next frame he is
holding a packet which has the words „Safed Namak‟ written in black. There
is no indication that this packet is that of TCL. The words spoken by Mr.
Kapoor are „ Ye paint, chemical factory mein banta hai ‟ and while holding
the packet of salt he states „ Aur ye aapka safed namak, Jisse aap roz khate
hai ye bhi chemical factory mein banta hai, bleach kiya jaata hai .‟
50. The third frame in the paint film (which is the fourth in the clothes film
and fifth in the Haldi film) shows Mr. Kapoor stating „ Isiliye safed namak ko
karo ...‟ and making a waving gesture which in the normal sense would mean
„bye-bye‟.
51. TCL's specific objection to the waving gesture is that it is a „direct
reference‟ to TCL because it is a ' Ta Ta ' gesture. The Court is of the prima
facie view that the Respondent is indeed reading too much into the above
waving gesture. It did not in fact even convince the learned Single Judge
FAO (OS) No.64/2019 Page 21 of 26
who found it to be 'amusing' but not 'wholly innocent'. It prima-facie appears
to be in the form of an advice to discerning consumers to move away from
salt manufactured by a chemical process to natural salt. It is not possible
prima-facie to read into the waving gesture any „direct reference‟ to TCL's
product. Here, it requires to be noted that even TCL does not dispute that it
is not the sole manufacturer of salt using a chemical process. TCL's plea that
it denigrates a whole class of salt manufacturers is dealt with separately
hereafter.
52. The other criticism is that by stating that both paint and white salt are
manufactured in a chemical factory, an impression is being created „that
production methods of both are similar‟ and that white salt is „toxic and
harmful, like paint‟. This again prima-facie appears to be an instance of
TCL reading too much into the advertisement. TCL does not deny that its
salt is manufactured at its chemical factory which produces soda-ash and
that the salt is a by-product. TCL also admits that the salt contains an anti-
caking agent E-536 which is indeed Potassium Ferrocyanide.
53. There appears prima-facie to be no suggestion in the paint film that
TATA salt is either poisonous or harmful to health. The only suggestion
appears to be that the consumer should make an informed choice. On the
issue of denigration or disparagement of the TATA salt, at this stage when
evidence is yet to be led by the parties, what has to be considered is whether
in the paint film, any statement of Mr. Kapoor can be said to be false or
misleading or deliberately denigrating TATA salt?
54. As far as the other frames are concerned, which are common to all the
FAO (OS) No.64/2019 Page 22 of 26
three TVCs, they promote the Appellant‟s product as being natural,
containing potassium, iron and iodine in the natural form and stating that it
is healthy and urging the consumer to choose the Appellant‟s product. The
objection to the word „bleached‟ and that all white salts are therefore unfit
for consumption appears to be based on the alleged disparagement of „an
entire class of white salt manufacturers.‟
55. As regards treating the suit of TCL as a class action, it is seen that
ISMA, of which TCL is an active member, has already filed a suit in which
interim injunction initially granted stood vacated by the High Court of
Gujarat, which order subsists. This is not denied by TCL. There is, therefore,
merit in the contention of the Appellant that as far as class action is
concerned, the ISMA suit is already pending. The Gandhidham suit also
involves an identical issue. While TCL does not explain why it should be
permitted to institute multifarious litigation concerning the same issue, there
appears to be no justification in its prayer that its suit out of which the
present appeal arises, and which has been filed by TCL alone, should be
considered to be a class action particularly when the ISMA suit is pending.
56. As far as the present suit is concerned, the initial burden is on TCL to
demonstrate that its product has been specifically targeted by the TVCs.
Prima facie it does not appear to have succeeded in doing so. In other
words, the Court is not prima facie satisfied that the first TVC deliberately
denigrates TCL's TATA Salt. This Court is unable to concur with the
learned Single Judge in this regard.
57. Turning now to the second TVC which is the „clothes film‟, the first
FAO (OS) No.64/2019 Page 23 of 26
visual shows a bundle of white clothes which have been bleached and the
packet of white salt which Mr. Kapoor states has been bleached in a
chemical factory and which is why it is white. The objection is that this
creates an impression that it is „unnatural‟. These objections overlook the
fact that the consumer who is paying Rs.20 for 1 kg of TATA Salt will think
several times over if he decides to pay Rs.99 for a kg of the Appellant‟s
Puro-Healthy salt. He should know what the added value of the Appellant's
product is, which is the attempt being made in these three TVCs including in
the „clothes film‟.
58. Prima-facie it does not appear that the second TVC i.e. the clothes film
specifically targets TATA Salt. There is no image or allusion to TATA Salt
in the second TVC. Again, there is the waving gesture but without any
words. It prima-facie cannot be said to be denigrating TATA Salt in the
manner suggested by TCL.
59. The third TVC is the „Spices Film‟ or the „Haldi Film‟. The first frame
states an obvious fact that it is natural to use „Haldi‟ and „Lal Mirch‟ in
eating, whereas the salt that is used is made in a chemical factory and is
bleached. Here again there is no direct reference to TATA Salt. Following
this are the other common visuals which have been referred to earlier
beginning with the waving gesture. In the modified TVCs, a waving gesture
has been omitted.
60. In the considered view of the Court while it is open to the Appellant to
release both the original and the modified TVCs, the waving gesture as such
should not be seen as directly alluding to the Respondent‟s product. This
FAO (OS) No.64/2019 Page 24 of 26
should be seen as a permissible element in a commercial advertisement
where every expression could not be seen to be „false, misleading, unfair or
deceptive.‟ It must been seen as encouraging the consumer to make an
informed choice about the product for which the consumer is going to pay
much more. The class of the product itself is not comparable. The class of
consumers targeted is also different.
61. Learned counsel for the Respondents placed considerable reliance on the
observations of the learned Single Judge in para 63 of the impugned
judgment. In the absence of the matter having gone to the stage of evidence,
the conclusion of the learned Single Judge in para 63 that „the TATA brand
has earned iconic status. TATA salt was introduced by the Plaintiff and was
recognised by the Government as one of the products meant to eliminate
iodine deficiency', is problematic. Equally problematic is the opinion that
"The swathe of population which has consumed and continues to consume a
product such as TATA salt cannot be led to believe that they were
consuming poison or a dangerous ingredient, without there being
irrebuttable proof for the same.” This ought to be qualified by the caveat that
this is the Plaintiff's case which remains to be tested in evidence. The
threshold for proving defamation is high. In the present case, it might be
higher with the Appellant pleading truth as a defence.
62. In the prima-facie view of this Court, at the present stage when evidence
of the parties is yet to be led, it is not possible to come to a conclusion in the
manner that the learned Single Judge has, that the three TVCs make a direct
reference to TATA Salt and are either disparaging or denigrating of it.
FAO (OS) No.64/2019 Page 25 of 26
Conclusion
63. Consequently, this Court sets aside the impugned order of the learned
Single Judge in so far as it has injuncted the Appellant from releasing the
three TVCs. However, the injunction as regards the impugned video
released on whatsapp will continue.
64. As far as the injunction of the pamphlet flyer and marketing booklet etc.
is concerned, the Appellant‟s statement that it would delete the blurred
image of the salt packets on the left hand top corner of the page 10 of the
brochure is taken on record and the Appellant is permitted to release the said
brochure with the said modification. The impugned order of the learned
Single Judge in that regard stands modified accordingly.
65. The injunction as regards the article in the ET forming part of the
„impugned material‟ is, for the reasons aforementioned, vacated.
66. The appeal is accordingly disposed of in the above terms. The pending
application is also disposed of.
S. MURALIDHAR, J.
TALWANT SINGH, J.
OCTOBER 31, 2019
mw
FAO (OS) No.64/2019 Page 26 of 26